Rice v. U.S. Bank N.A. et al

Filing 4

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiff's motion for leave to proceed in forma pauperis Doc. 2 is GRANTED. IT IS FURTHER ORDERED that Plaintiff's motion for appointment of counsel Doc. 3 is DENIED at this time. IT IS FURTHER ORDERED that the Clerk of Court shall send to Plaintiff a copy of the Court's civil complaint form. IT IS FURTHER ORDERED that Plaintiff shall file an amended complaint on the Court-provided form within thirty (30) days of the date o f this order, in accordance with the instructions set forth above. IT IS FURTHER ORDERED that if Plaintiff does not file an amended complaint on the Court-provided form within thirty (30) days of the date of this order, in accordance with the inst ructions set forth above, this case will be dismissed without prejudice and without further notice. IT IS FURTHER ORDERED that upon receipt of Plaintiff's amended complaint, the Court will review it pursuant to 28 U.S.C. § 1915. Signed by District Judge Matthew T. Schelp on June 4, 2021. (Attachments: # 1 Civil Complaint Form)(BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
LATRIVIA ANN RICE,
Plaintiff,
v.
U.S. BANK N.A., et al.,
Defendants.

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No. 4:21 CV 81 MTS

MEMORANDUM AND ORDER
This matter comes before the Court on the motion of plaintiff Latrivia Ann Rice for leave
to commence this civil action without prepayment of the required filing fee. Doc. [2]. Having
reviewed the motion, the Court finds that it should be granted. See 28 U.S.C. § 1915(a)(1).
Additionally, Plaintiff will be directed to file an amended complaint according to the instructions
set forth below.
Legal Standard on Initial Review
Under 28 U.S.C. § 1915(e)(2), the Court is required to dismiss a complaint filed in forma
pauperis if it is frivolous, malicious, or fails to state a claim upon which relief can be granted. To
state a claim, a plaintiff must demonstrate a plausible claim for relief, which is more than a “mere
possibility of misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. at 678. Determining whether
a complaint states a plausible claim for relief is a context-specific task that requires the reviewing
court to draw upon judicial experience and common sense. Id. at 679. The court must “accept as
true the facts alleged, but not legal conclusions or threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements.” Barton v. Taber, 820 F.3d 958, 964 (8th Cir.
2016). See also Brown v. Green Tree Servicing LLC, 820 F.3d 371, 372-73 (8th Cir. 2016) (stating
that court must accept factual allegations in complaint as true, but is not required to “accept as true
any legal conclusion couched as a factual allegation”).
When reviewing a pro se complaint under § 1915(e)(2), the Court must give it the benefit
of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). A “liberal construction”
means that if the essence of an allegation is discernible, the district court should construe the
plaintiff’s complaint in a way that permits his or her claim to be considered within the proper legal
framework. Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015). However, even pro se
complaints are required to allege facts which, if true, state a claim for relief as a matter of law.
Martin v. Aubuchon, 623 F.2d 1282, 1286 (8th Cir. 1980). See also Stone v. Harry, 364 F.3d 912,
914-15 (8th Cir. 2004) (stating that federal courts are not required to “assume facts that are not
alleged, just because an additional factual allegation would have formed a stronger complaint”).
In addition, affording a pro se complaint the benefit of a liberal construction does not mean that
procedural rules in ordinary civil litigation must be interpreted so as to excuse mistakes by those
who proceed without counsel. See McNeil v. United States, 508 U.S. 106, 113 (1993).
The Complaint
Plaintiff is a self-represented litigant who brings this civil action against defendants U.S.
Bank N.A. and Robert D. Spickerman. The complaint is typewritten on a Court-provided civil
complaint form. Attached to the complaint are seventy-four pages of exhibits, consisting of various
financial statements, affidavits executed by Plaintiff, certified mail receipts, and an affidavit
authored by an “expert witness” in a civil case out of the Circuit Court of Oakland County,
Michigan.

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Plaintiff asserts that federal question jurisdiction exists pursuant to 15 U.S.C. § 1601; 15
U.S.C. § 1681; 12 U.S.C. § 411; 12 U.S.C. § 412; and 31 U.S.C. § 3123. Doc. [1] at 3. She also
indicates that diversity of citizenship jurisdiction exists as well. Doc. [1] at 4-5.
Plaintiff’s “Statement of Claim” consists of a series of short, conclusory sentences. She
alleges that on September 8, 2020, in Florissant, Missouri, defendants “[f]ailed to respond to
claims in regards to a private consumer abode,” and “[s]imulated legal process.” Doc. [1] at 6.
Plaintiff further contends that defendants harmed her due to foreclosure, telephonic harassment,
defamation of character, and emotional and verbal abuse. She states that the foreclosure was
unlawful, and that defendants apparently engaged in “[a]busive debt collection practices, [f]alse
and misleading representations, [and] [m]ail [f]raud.” Doc. [1] at 7. As a result, Plaintiff is seeking
$7 million in damages. Doc. [1] at 6.
Discussion
Plaintiff has filed a civil action against defendants U.S. Bank N.A. and Robert D.
Spickerman. Because Plaintiff is proceeding in forma pauperis, the Court has reviewed her
complaint pursuant to 28 U.S.C. § 1915. Based on that review, and for the reasons discussed below,
the Court has determined that Plaintiff’s complaint is subject to dismissal. However, Plaintiff will
be given an opportunity to file an amended complaint according to the instructions set forth below.
A. Deficiencies in Complaint
Plaintiff’s complaint is deficient because if fails to state a claim against either named
defendant. Plaintiff relies wholly on vague and conclusory assertions. She states there was a failure
“to respond to claims in regards to a private consumer abode,” without providing any explanation
or context as to what she means. Her list of wrongs, including statements about an unlawful
foreclosure, defamation of character, verbal abuse, and telephonic harassment. These are all legal

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or factual conclusions without any supporting facts and as such, are insufficient to state a claim.
See Torti v. Hoag, 868 F.3d 666, 671 (8th Cir. 2017) (“Courts are not bound to accept as true a
legal conclusion couched as a factual allegation, and factual allegations must be enough to raise a
right to relief above the speculative level”).
Furthermore, Plaintiff does not mention either defendant in the “Statement of Claim.” As
such, there is no indication as to what U.S. Bank N.A. and Robert Spickerman did or did not do to
harm her. “The essential function of a complaint under the Federal Rules of Civil Procedure is to
give the opposing party fair notice of the nature and basis or grounds for a claim, and a general
indication of the type of litigation involved.” Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d
843, 848 (8th Cir. 2014). Here, Plaintiff has failed to give Defendants any notice of the nature and
basis of her claims against them.
The Court notes that in the “Statement of Claim,” Plaintiff refers to her attachments to
demonstrate what Defendants did or did not do to harm her. This is not adequate to state a claim
for relief. Rule 8 of the Federal Rules of Civil Procedure requires “a short and plain statement of
the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The seventy-four
pages of exhibits that have been attached to the complaint, some of them of unclear relevance,
certainly do not constitute “a short and plain statement of the claim.”
For all these reasons, Plaintiff’s complaint is subject to dismissal. Rather than dismiss the
complaint outright, she will be given the opportunity to file an amended complaint.
B. Amendment Instructions
Plaintiff should type or neatly print her amended complaint on the Court’s civil complaint
form, which will be provided to her. See E.D. Mo. L.R. 2.06(A) (“All actions brought by selfrepresented plaintiffs or petitioners should be filed on Court-provided forms”). If the amended

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complaint is handwritten, the writing must be legible. In the “Caption” section of the Courtprovided form, Plaintiff should clearly name each and every party she is intending to sue. See Fed.
R. Civ. P. 10(a) (“The title of the complaint must name all the parties”). If there is not enough
room in the caption, Plaintiff may add additional sheets of paper. However, all the defendants must
be clearly listed. Plaintiff should fill out the complaint form in its entirety, and ensure that it is
signed.
In the “Statement of Claim” section, Plaintiff should provide a short and plain statement of
the factual allegations supporting her claim. See Fed. R. Civ. P. 8(a). Plaintiff should put each
claim into a numbered paragraph, and each paragraph should be “limited as far as practicable to a
single set of circumstances.” See Fed. R. Civ. P. 10(b).
In structuring her amended complaint, Plaintiff should begin by writing the defendant’s
name. In separate, numbered paragraphs under that name, Plaintiff should write a short and plain
statement of the factual allegations supporting her claim against that specific defendant. If Plaintiff
is suing more than one defendant, she should follow the same procedure for each defendant.
The Court reiterates that Plaintiff cannot simply attach exhibits to her complaint and expect
the Court or defendants to piece together her claim. Instead, Plaintiff must present factual
allegations against each defendant that shows what that particular defendant did or did not do to
harm her. The Court further emphasizes that the “Statement of Claim” requires more than “labels
and conclusions or a formulaic recitation of the elements of a cause of action.” See Neubauer v.
FedEx Corp., 849 F.3d 400, 404 (8th Cir. 2017).
Plaintiff is warned that the filing of an amended complaint completely replaces the
original complaint. This means that claims that are not re-alleged in the amended complaint will
be deemed abandoned. See In re Wireless Tel. Fed. Cost Recovery Fees Litig., 396 F.3d 922, 928

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(8th Cir. 2005) (“It is well-established that an amended complaint supercedes an original complaint
and renders the original complaint without legal effect”).
After receiving the amended complaint, the Court will review it pursuant to 28 U.S.C. §
1915. Plaintiff’s failure to make specific factual allegations against a defendant will result in the
dismissal of that defendant. If Plaintiff fails to file an amended complaint on a Court-provided
form within thirty days in accordance with the instructions set forth herein, the Court will dismiss
this action without prejudice and without further notice to Plaintiff.
C. Motion to Appoint Counsel
Plaintiff has filed a motion to appoint counsel. Doc. [3]. In civil cases, a pro se litigant does
not have a constitutional or statutory right to appointed counsel. Ward v. Smith, 721 F.3d 940, 942
(8th Cir. 2013). Rather, a district court may appoint counsel in a civil case if the court is “convinced
that an indigent plaintiff has stated a non-frivolous claim…and where the nature of the litigation
is such that plaintiff as well as the court will benefit from the assistance of counsel.” Patterson v.
Kelley, 902 F.3d 845, 850 (8th Cir. 2018). When determining whether to appoint counsel for an
indigent litigant, a court considers relevant factors such as the complexity of the case, the ability
of the pro se litigant to investigate the facts, the existence of conflicting testimony, and the ability
of the pro se litigant to present his or her claim. Phillips v. Jasper Cty. Jail, 437 F.3d 791, 794 (8th
Cir. 2006).
After reviewing these factors, the Court finds that the appointment of counsel is not
warranted at this time. In particular, the Court notes that it is not convinced that Plaintiff has stated
a non-frivolous claim, and has directed her to file an amended complaint. The Court will entertain
future motions for appointment of counsel as the case progresses, if appropriate.
Accordingly,

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IT IS HEREBY ORDERED that Plaintiff’s motion for leave to proceed in forma pauperis
Doc. [2] is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s motion for appointment of counsel Doc. [3]
is DENIED at this time.
IT IS FURTHER ORDERED that the Clerk of Court shall send to Plaintiff a copy of the
Court’s civil complaint form.
IT IS FURTHER ORDERED that Plaintiff shall file an amended complaint on the Courtprovided form within thirty (30) days of the date of this order, in accordance with the instructions
set forth above.
IT IS FURTHER ORDERED that if Plaintiff does not file an amended complaint on the
Court-provided form within thirty (30) days of the date of this order, in accordance with the
instructions set forth above, this case will be dismissed without prejudice and without further
notice.
IT IS FURTHER ORDERED that upon receipt of Plaintiff’s amended complaint, the
Court will review it pursuant to 28 U.S.C. § 1915.
Dated this 4th day of June, 2021.
_______________________________
MATTHEW T. SCHELP
UNITED STATES DISTRICT JUDGE

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